JUS NATURALE]
All this is remarkable, manifesting a spirit very different from that which animated the common law of testaments. True, it was a principle with the jurists of the classical period that the voluntatis ratio was to be given effect to in the interpretation of testamentary writings; but that was on the condition that the requirements of law as to form and substance had been scrupulously observed. But in the military testament positive rules were made to yield to the voluntas in all respects: the will was almost absolutely unfettered. Roman law in this matter gave place to natural law. One would have expected the influence of so great a change to have manifested itself by degrees in the ordinary law of testaments; yet it is barely visible. In a few points the legislation of Constantine, Theodosius II. and Justinian relaxed the strictness of the old rules; but there was never any approach to the recognition of the complete supremacy of the voluntas. In the Corpus Juris the contrast between the testamentum paganum and the testamentum militare was almost as marked as in the days of Trajan. The latter was still a privileged deed, whose use was confined to a soldier actually on service, and if he received an honourable discharge, for twelve months after his retirement.
The peculium castrense had a wider influence; for it was the first of a series of amendments that vastly diminished the importance AeaiUum of the atria potestas on its patrimonial side. It had t astre n its origin in a constitution of Augustus granting to
fcliifamilias on service the right to dispose by testament of what they had acquired in the active exercise of their profession (quod in castris adquisierant).i But it soon went much further. Confined at first to filiifamilias on actual service, the privilege was extended by Hadrian to those who had obtained honourable discharge. The same emperor allowed them not merely to test on their peculium castrense, 'but to manumit inter vivos slaves that formed part of it; and by a little step further the classical jurists recognized their right to dispose of it onerously or gratuitously inter vwos. In the 3rd century the range of it was extended so as to include not only the soldier's pay and prize, but all that had come to him, directly or indirectly, in connexion with his profession—his outfit, gifts made to him during his service, legacies from comrades and so on. All this was in a high degree subversive of the doctrines of the common law. It may almost be called revolutionary; for it involved in the first place the recognition of the right of a person alien juris to make a testament as if he were sui juris, and in the second place the recognition of a separate estate in a filiusfamilias which he might deal with independently of his paterfamilias, which could not be touched by the latter's creditors, and which he was not even bound to collate (or bring into hotch-pot) on claiming a share of his father's succession. The radical right of the parent, however, was rather suspended than extinguished ; for, if the soldier son died intestate, the right of the paterfamilias revived : he took his son's belongings, not as his heir appropriating an inheritance, but as his paterfamilias reclaiming a peculium .2
The Family.-The legislative efforts of Augustus to encourage marriage, to which persons of position showed a remarkable distaste,
Family
have already been mentioned. The relation of husband Relations. and wife still in law required no more for its creation
than deliberate interchange of nuptial consent, although in certain cases some act indicative of change of life, such as the bride's home-coming to her husband's house, was regarded as the criterion of completed marriage.' But it was rarely accompanied with menus. So repugnant was such subjection to patrician ladies that they declined to submit to confarreate nuptials; and so great consequently became the difficulty of finding persons qualified by confarreate birth to fill the higher priesthoods that early in the Empire it had to be decreed that confarreation should in future be productive of menus only quoad sacra, and should not make the wife a member of her husband's family. Manus by a year's uninterrupted cohabitation was long out of date in the time of Gaius; and, although that by coemption was still in use in his time, it was almost unknown by the end of the period. Husband and wife therefore had their separate estates, the common establishment being maintained by the husband, with the assistance of the revenue of the wife's dowry (dos)—an institution which received much attention at the hands of the jurists, and was to some extent regulated by statute. Divorce (either of common consent or by re/radium by either spouse) was unfortunately very common; it was lawful even without any assignable cause; when blame attached to either spouse, he or she suffered deprivation to some extent of the nuptial provisions, but there were no other penal consequences.
Not only in the case of a filiusfamilias who had adopted a military career, but in all directions, there was manifested a strong tendency to place restrictions on the exercise of the patria potestas. This was due in a great degree to the hold that the principles of natural law were gaining within the Roman system, perhaps due
Inst. ii. 12 pr.
4 This was altered by Justinian's 118th Novel, under which a paterfamilias taking any part of a deceased son's estate did so as his heir; see infra, p. 573.
Some writers take the view that such act was always essential. See Girard, Manuel, 4th ed. p. i5i.565
to the fact that the emperors, having succeeded to the censorial regimen morum, allowed these principles freely to influence their edicts and rescripts. Exposure of an infant was still apparently allowed; but a parent was no longer permitted, even in the character of household judge, to put his son to death or cruelly ill-treat him; in fact his prerogative was limited to moderate chastisement, the law requiring, in the case of a grave offence that merited severer punishment, that he should bring his child before the competent magistrate. His right of sale, in like manner, was permitted only when he was in great poverty and unable to maintain them, while their impignoration by him was prohibited under pain of banishment.
Except in the solitary case of a son who was a soldier, a paterfamilias was still recognized as in law the owner of all the earnings and other acquisitions of his children in potestate; but the old rule still remained that for their civil debts he was not liable beyond the amount of the fund he had advanced them to deal with as de facto their own (peculium profecticium), except when he had derived advantage from their contract or had expressly or by implication authorized them to enter into it as his agents. To the party with whom he had contracted a filiusfamilias was himself liable as fully as if he had been a paterfamilias, with one exception, namely, when his debt was for borrowed money; in that case, with some very reasonable qualifications, it was declared by the well-known Macedonian senatusconsult (of the time of Vespasian) that the lender should not be entitled to recover payment, even after his borrower had become sui juris by his father's death. Between a father and his emancipated son there was, and always had been, perfect freedom of contract; but so was there now between a father and his soldier son in any matter relating to the peculium castrense, even though the son was in potestate. What is still more remarkable is that the new sentiment which was operating on the jus civile admitted the possibility of natural obligation between paterfamilias and filiusfamilias even in reference to the peculium profecticium, which, though incapable of direct enforcement by action, was yet to some extent recognized and given effect to indirectly.
In the matter of guardianship, while the tutory of pupils was carefully maintained and the law in regard to it materially amended during the period under review (particularly by a senatusconsult generally referred to as the Oratio divi Severi, prohibiting alienation of the ward's property without judicial authority), that of women above the age of pupillarity gradually disappeared.4 The guardianship or curatory (cura) of minors above pupillarity owed its establishment as a general doctrine to Marcus Aurelius. The Plaetorian law 6 of the middle of the 6th century of the city had indeed imposed penalties on those taking undue advantage of the inexperience of minors, i.e. persons sui juris under the age of twenty-five; and from that time the praetors were in the habit of granting restitutio in integrum in cases of lesion and appointing curators to act with such persons for the protection of their interests in particular affairs. But it was Marcus Aurelius that first made curatory a general permanent office, to endure in the ordinary case until the ward attained majority. The powers, duties and responsibilities of such curators became a matter for careful and* elaborate definition and regulation by the jurists, whose exposition indeed of the law of guardianship generally, whether by tutors or curators, has found wide acceptance in modern systems of jurisprudence.
The Law of Succession and particularly Testamentary Trusts.—There were far more positive changes in the law of succession than in either that of property or that of obligation. The rise Law of and progress of the military testament has already been Suraesexplained. The testament of the common law was still lion. ostensibly that per aes et libram; but the practice of
granting bonorum possessio secundum tabulas to the persons named as heirs in any testamentary instrument that bore outside the requisite number of seals led, from the time of Antoninus Pius, to the frequent neglect of the time-honoured formalities of the familiae mancipatio and nuncupatio testamenti. It was his rescript, formerly mentioned, declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non-compliance with the purely formal requirements of the law, that practically established what Justinian calls the praetorian testament.
One of the commonest provisions in the testaments of the period was the fcdeicommissum,—a request by the testator to his heir to enter on the inheritance and thereafter denude wholly or partially in favour of a third party. It was introduced in the time of Augustus by (it is said by Theophilus) a testator who had married a peregrin wife, and desired thus indirectly to give to his peregrin children the succession which, as not being citizens, they could neither take ab intestate nor as his direct testamentary heirs.e He probably soon found imitators, and their number must have rapidly multiplied once the emperor, shocked at the perfidy of a trustee
4 Dig. xxvii. 9 fr. i, § 2.
c Also sometimes called lex Laetoria. See, e.g. reference to a recently discovered papyrus in Z. d. Say. Stift. xxii. 170.
4 Fideicommissa, as informal requests to heirs or legatees to hand over what they received to third parties, were known earlier than Augustus, but had no legal force.
who had failed to comply with the request of his testator, indicated his approval of the new institution by remitting the matter to the consuls of the day, with instructions to do in the circumstances what they thought just. So quickly did it establish itself in public favour, and so numerous did the questions become as to the construction and fulfilment of testamentary trusts, that under Claudius it was found necessary to institute a court specially charged with their adjudication—that of the praetor fideicommissarius.
The employment of a trust as a means of benefiting those who were under disqualifications as heirs or legatees, as, for example, persons who had no testamenti factio, women incapacitated by the Voconian law, unmarried and married. but childless persons in-capacitated by the Julian and Papia-Poppaean law, and so on, was in time prohibited by statute; but that did not affect its general popularity. For, whether what was contemplated was a transfer of the universal hereditas or an aliquot part of it to the beneficiary (fideicommissum hereditatis), or only of some particular thing (frdeicommissum rei singularis), a testamentary trust had various advantages over either a direct institution or a direct bequest (legatum). Still the imposition upon the heir of a trust in favour of a beneficiary, whether it required him to denude of the whole or only a part of the inheritance, did not in theory deprive him of his character of heir or relieve him of the responsibilities of the position; and at common law therefore he was entitled to decline the succession, often to the great prejudice of the beneficiary. In order to avoid such a mischance, and at the same time to regulate their relations inter se and towards debtors and creditors of the testator, it became the practice for the parties to enter into stipulatory arrangements about the matter; but these were to some extent rendered superfluous by two senatusconsults, the Trebellian in the time of Nero and the Pegasian in that of Vespasian, which not only secured the beneficiary against the trustee's (i.e. the heir's) repudiae tion of the inheritance, but also protected the latter from all risk of loss where he was trustee and nothing more, and enabled the former to treat directly with debtors and creditors of the testator and himself ingather the corporeal items of the inheritance.
It was one of the advantages of a trust-bequest, whether universal or singular, that it might be conferred in a codicil, even though unconfirmed by any relative testament. The codicil (codicilli), also an invention of the time of Augustus, was a deed of a very simple nature. Though in the later Empire it required to be formally attested by at least five witnesses, it was at first quite informal. It was inappropriate either for disherison of sui or institution of an heir; but if confirmed by testament, either prior or posterior to its date, it might contain direct bequests, manumissions, nominations of tutors, and the like, and whether confirmed or unconfirmed might, as stated, be utilized as a vehicle for trust-gifts. Latterly it was held operative, even in the absence of a testament, the trusts contained in it being regarded as burdens on the heir-at-law.
The most important changes in the law of intestate succession during the period were those accomplished by the Tertullian and Orphitian senatusconsults, fruits of that respect for the precepts of natural law which in so many directions was modifying the doctrines of the jus civile. The first was passed in the reign of Hadrian, the second in the year 178, under Marcus Aurelius. Down to the time of the Tertullian senatusconsult a mother and her child by a marriage that was unaccompanied with menus stood related to each other only as cognates, being in law members of different families; consequently their chance of succession to each other was remote, being postponed to that of their respective agnates. The purpose of the senatusconsult was to prefer a mother to all agnates of her deceased child except father and brother and sister; father and brother excluded her; but with a sister of the deceased, and in the absence of father or brother, she shared equally. While there can be little doubt that it was considerations of natural law that dictated this amendment, yet its authors were too timid to justify it on the abstract principle of common humanity, and so they confined its application to women who had the jus liberorum, i.e. to women of free birth who were mothers of three children and freedwomen who were mothers of four, thus making it ostensibly a reward of fertility. The Orphitian senatusconsult was the counterpart of the Tertullian. It gave children, whether legitimate or illegitimate, a right of succession to their mother in preference to all her agnates; and subsequent constitutions extended the principle, admitting lawful children to the inheritance not only of their maternal grand-parents but also to that of their paternal grandmother.
iii. Judicial Procedure.
The Formular System'—The ordinary procedure during the greater part of the first three centuries of the Empire was still Formular two-staged; it commenced before the praetor (in jure) Formal and was concluded before a judge or judges (in judicio).
But the legis actions had with a few exceptions given place to praetorian formulae. Under the sacramental system parties,
See Keller (as on p. 547, n.), §§ 23–43; Bethmann-Hollweg (as in same note), vol. ii. §§ 81–87; Bekker (as in same note), vol. i. chaps. 4–7, vol. ii. chaps. 15, 19, 20; Baron, Gesch. d. rOm. Rechts (Berlin, 1884), vol. i. §§ 202–215.and particularly the plaintiff, had themselves to formulate in statutory or traditional words of style the matter in controversy between them; and as they formulated, so did it go for trial to centumviral court or judex, with the not infrequent result that it was then all too late discovered that the real point in the case had been missed. Under the formular system parties were free, to represent their plaint and defence to the praetor in any words they pleased, the plaintiff asking for a formula and usually indicating the style on the album that he thought would suit his purpose, and the defendant demanding when necessary an ,exception, i.e. a plea in defence, either praetorian or statutory, that, without traversing the facts or law of the plaintiff's case, avoided his demand on grounds of equity or public policy or the like. It was for the praetor to consider and determine whether the action or exception should or should not be granted, and, if granted, whether it should be according to the style exhibited on the album or according to a modification of it. The result he embodied in a written and signed appointment of a judge, whom he instructed what he had to try, and empowered to pronounce a finding either condemning or acquitting the defendant. This writing was the formula.
Although it was not until the early Empire that this system of civil procedure attained its full development, yet it had begun between one and two centuries before the fall of the Republic. Gaius ascribes its introduction and definitive establishment to the lex Aebutia and two judiciary laws of the time of Augustus, formerly mentioned (supra, pp. 98, 124). The Aebutian law, of which unfortunately we know very little, is generally supposed to have empowered the praetors (i) to devise a simpler form of procedure for causes already cognizable per legis actionem, (2) to devise forms of action to meet cases not cognizable under the older system, and (3) themselves to formulate the issue and reduce it to writing. It was by no means so radical a change as is sometimes supposed. There were formulae employed by the peregrin praetor before it and also perhaps something analogous thereto by the urban praetor. There were also formulae of a kind employed both in the procedure
per judicis postulationem and in that per condictionem. The difference between the latter and the formulae of the Aebutian system was that they were in part mere echoes of the statutory words of style uttered by the plaintiff, and that they were not written but spoken in the hearing of witnesses.
A large proportion of the personal actions of the formular system were evolved out of the legis actio per condictionem. The sequence
of operations may have been something like this. Taking !ts the simplest form of it, the action for terta petunia under caflonYo
the Silian law, the first step was to drop the formal con- Persoaal dictio from which it derived its character of legis actio, thus AcHoas. avoiding a delay of thirty days; the plaintiff stated his de-
mand in informal words, and, if the defendant denied indebtedness, the praetor straightway formulated a written appointment of and instruction to a judge, embodying in it the issue in terms substantially the same as those he would have employed under the earlier procedure:—" Titius be judge. Should it appear that N. N. ought to pay (dare oportere) 50,000 sesterces to A. A., in that sum condemn N.N. to A. A.; 2 should it so not appear, acquit him;" This was no longer the legis actio per condictionem, because 'what had made it legis actio was gone, but the condictio certae pecuniae of the formular system. The condictio triticaria of the same system ran on the same lines: "Titius be judge. Should it appear that N. N. ought to give A. A. the slave Stichus, then, whatever be the value of the slave, in that condemn N. N. to A. A.," and soon. In each of these examples the formula included only two of the four principal clauses that might find place in it'—an " intention" and a " condemnation." The matter of claim in both cases was certain,—so much money in one, a slave in the other; but, while in the first the condemnation also was certain, in the second it was uncertain. What if the claim also was uncertain,—say a share of the profits of a joint adventure assured by stipulation? It was perhaps competent for the plaintiff to specify a definite sum, and claim that as due to him; but it was very hazardous, for unless he was able to prove the debt to the last sesterce he lost his case. To obviate the risk of such failure the praetors devised the actio ex stipulatu, whose formula commenced with a "demonstration " or indication of the cause of action, and whose " intention " referred to it and was conceived indefinitely: " Titius be judge. Whereas A. A. stipulated with N. N. for a share of the profits of a joint adventure, whatever in respect thereof N. N. ought to give to or do for (dare facere oportet) A. A., in the money amount
' In the typical Roman styles of actions the plaintiff was usually called Aulus Agerius and the defendant Numerius Negidius.
Gaius enumerates them as demonstratio, intentio, ad'udicatio and condemnatio, and describes their several functions in iv. §§ 39–43. The intentio and condemnatio were much the most important, the others being employed only in certain kinds of actions. Besides these a formula might be preceded by a praescriptio (Gai. iv. §§ 130-137), and have incorporated in it fictions (§§ 2-38), exceptions (§§ 115-125), and replications, duplications. &c. (§§ I26-129).
thereof condemn N. N.," and so on.' Once this point was attained further progress was comparatively easy, the way being open for the construction of formulae upon illiquid claims arising from trans-actions in which the practice of stipulation gradually dropped out of use, till at last the bonae fidei judicia were reached, marked by the presence in the " intention " of the words ex fide bona—" whatever in respect thereof N. N. ought in good faith to give to or do for A. A."
In the case of real actions the transition from the legis actiones to the formulae followed a different course. The Aebutian law, ka appal- while sanctioning the competency of formulae, did not
nation interfere with the procedure per sacramentum when
to real reference was to be to the centumviral court on a ques-
to rcas. tion of quiritarian right. In the time of Cicero that court
action
was apparently still in full activity (supra), but by that
of Gaius, owing, it is supposed, to the Julian laws having made formulae in most cases compulsory, it was rarely resorted to except for trial of questions of inheritance. In his time questions of property were raised either per sponsionem or per formulam petitoriam. The procedure by sponsion may be regarded as a sort of bridge between the sacramental process and the petitory vindicatio. In it the question of real right was determined only in-directly. The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty-five sesterces in the event of the thing in dispute being found to belong to the former; and at the same time the defendant gave sureties for its transfer to the plaintiff, with all fruits and profits, in the same event. The formula that was adjusted and remitted to a judge raised ex facie only the simple question whether the twenty-five sesterces were due or not: the action was in form a personal, not a real one, and was therefore appropriately remitted to a single judex instead of to the centumviral tribunal. But judgment on it could be reached only through means of a finding (sententsa) on the question of real right; if it was for the plaintiff, he did not claim the amount of the sponsion, but the thing which had been found to be his; and, if the defendant delayed to deliver it, with its fruits and pro-fits, the plaintiff had recourse against the latter's sureties. The petitory formula was undoubtedly of later introduction and much more straightforward. Like the condictio certae pecuniae, it contained only " intention " and " condemnation.' It ran thus: " Titius be judge. Should it appear that the slave Stichus, about whom this action has been raised, belongs to A. A. in quiritary right, then, unless the slave be. restored, whatever be his value, in that you will condemn N. N. to A. A.; should it not so appear, you will acquit him."
The formulae given above, whether applicable to real or personal actions, are so many illustrations of the class known as formulae
juris civilis or in jus conceptae. The characteristic of O°j diod such a formula was that it contained in the " intention " in factual • such phrases as the following—ejus esse ex jure Quiritium, conceptae. praestare oportere,' dare oportere, dare facere oportere,
or damnum decidere oportere.3 Such words were. em-
Eloyed where the right to be vindicated or the obligation to be enforced had its sanction directly in the jus civile whether in the shape of statute, consuetude or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetor's edict, special formulae had to be framed. The actions employed in such cases were actiones juris honoraria, and these either actions utiles or actiones in faetum. The first were adaptations of actions of the jus civile to cases that did not properly fall within them; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile.'
1 This actio ex stipulatu used to be regarded as nothing more than a variety of the condictio incerti. It is doubtful, however, whether in the condictiones incerti (e.g. the condictio furtiva) there was any demonstratio. See Girard, Manuel, p. 614n. 2'and 3 and authorities there cited.
= Employed in the divisory actions, i.e. for dividing common property, partitioning an inheritance, or settling boundaries; the demand was that the judge should adjudicate (or assign) to each of the parties such a share as he though just. See Lenel, Edict. Perpet. 2nd ed. pp. 202, 205.
'Employed in certain actions upon delict, where the old penalties of death, slavery or talion .had in practice, or by the praetor's authority, been transmuted into money payments, and the defendant consequently called upon to pay penal damages. According to Lenel, Ed. Peep. 2nd ed. p.- 287, the form dare facere praestare oportere was probably used in actions pro socio.
' These latter have an analogy to the English " action on the case." In a few instances there was both civil and praetorian remedy for the same wrong; for Gaius observes. (iv. 47) that in commodate and deposit failure of the borrower or depositary to return the thing lent to or deposited with him gave rise to actions that might be formulated either in jus or in factum. In the same section he gives the styles of actiones depositi in jus and in factum conceptae; their comparison is instructive: The formula in factum must almost certainly have been the earlier and shows, it .is thought,
Utilis actin may be translated as analogous or adapted action, i.e. analogous to a direct action. Where a direct action was in-applicable to particular cases or persons, according to Actions the terms of a lex, edict, &c., the praetor frequently utiles.
adapted the statute, &c., to such cases and persons by
granting an actio utilis. He did so where he thought them to be within the spirit though not the letter of the law. He effected his object commonly by a modification of the regular formula either objectively, as by adding, or omitting, or altering words, or subjectively by transposing names of parties. But sometimes also the adaptation was made by the introduction of a legal fiction into the regular formula, and in this case the action was called utilis fictitia or simply fictitia. The actiones utiles might, therefore, be of two kinds, ordinary and fictitious. Those of common occurrence early became stereotyped in the Edict and even got special names.
As illustrations of an ordinary actio utilis, in which the formula was objectively modified, reference may be made to the numerous actions for wrongful damage to property under the lex Ordinary. Aquilia. Thus this statute in its first chapter used the
term occidere, which means killing by a physical act of violence (corpore corpori), but to meet cases of killing without violence (e.g. by poison) the praetors simply substituted the words mortis causam praestare for occidere in the formula. As illustrations of an ordinary actio utilis with subjective transposition of names, we may mention the actio Rutiliana applicable to a purchaser of the bankrupt estate of a living debtor, the action by an assignee of a debt against the debtor. and the action of a procurator suing for his principal. In these the names of the bankrupt, cedent and principal respectively appeared in the intentio, while the plaintiff's name was inserted in the condemnatio.
Resort to a fiction is sometimes said to be a confession of weakness, and adversely criticized accordingly. But every amendment on the law is an admission of defect in what is being amended ; Actions and it was in sympathy with the spirit of Roman juris- NcMae. prudence, when it found an action too narrow in its de-
finition, to include some new case that ought to fall within it, rather by feigning that the new case was the same as the old, to bring it within the scope of the existing and familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy. A bonorum possessor held a position unknown to the jus civile; he was not an heir, and therefore not entitled offhand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors. The praetor could have had no difficulty in devising new actions to meet his case; but he preferred the simpler expedient of adapting to it an heir's actions, by introducing into the formula a fiction of civil heirship; so he did with the bonorum emptor or purchaser of a deceased bankrupt's estate at the sale of it in mass by his creditors. A peregrin could not sue or be sued for the penalties imposed for theft or culpable damage to property, for the XII. Tables and the Aquilian law applied only to citizens; but he could both sue and be sued under cover of a fiction of citizenship. A man who had acquired a res mancipi on a good title, but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it. But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usucapion—the Publician action referred to on p. 556. These are examples of actiones fictitiae—actions of the jus civile adapted by this very simple expedient to cases to which otherwise they would have been inapplicable, and forming one of the most important varieties of the actiones utiles.
Quite different was the course of procedure in the actiones in factum, whose number and varieties were practically unlimited, although for the most part granted in pursuance of the praetor's promise in the edict that under such and such circumstances he would make .a remit to a judex (judicium dabo),' and formulated in accordance with the relative skeleton styles also published on the album. A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotiorurtt gestorum, actio hypothecaria, actio de petunia constituta, actio vi bonorum raptorum, actio de superficie, &c.—the generic name actio in factum being usually confined to the innominate ones. Their formulae, unlike those in jus conceptae, submitted no question of legal right for the
that deposit and commodate were enforced (perhaps first by the pererin praetor) by means of edicts before being admitted into the jus civile.
s Examples: " Si quis negotia alterius .. gesserit, judicium eo nomine dabo " (Dig. iii. 5, 3, pr.) ; " Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et justa causa esse videbitur, judicium dabo " (Dig. iv. 3, i, § 1); " Nautae caupones stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo " (Dig. iv. 9, i, pr.) ; " Quod quis commodasse dicetur, de eo judicium dabo " (Dig. xiii. 6. i, pr.).
consideration of the judge, but only a question of fact, proof of which was to be followed by a condemnation. That of the actio de dolo, for example, ran thus: " Titius be judge. Should it appear that, through the fraud of N. N., A. A. was induced to convey and cede possession to him of his farm (describing it), then, unless on your order N. N. restores it, you will condemn him in damages to A. A.; if it shall not so appear, you will acquit him." Actions in factum might be utiles as well as direct; e.g. actio quasi-Serviana or hypothecaria was utilis, being based on analogy to the actio Serviana.
Our limits do not admit of any explanation of the purpose, form, or effect of the prescriptions, exceptions, replications, &c., that were engrafted on a formula when required; or of the ways in which the " condemnation " was occasionally " taxed " by the praetor, so as to prevent the award of extravagant damages; or of the consequences of defects in the formula; or of the procedure in jure before it was adjusted, or in judicio afterwards; or of appeal for review of the judgment by a higher tribunal; or of execution (which was against the estate of the judgment-debtor, and took the form of incarceration only when his goods could not be attached). Our main object has been to show how elastic was this procedure, and how the praetorian formulae, in conjunction with the relative announcements in the edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine. The system was fully developed before Julian's consolidation of the Edict ; and the statutory recognition which the latter then obtained, though it stopped the praetor's power of amending the law, did nothing to impair the efficiency of the existing procedure.
Procedure extra Ordinem.i—The two-staged procedure, first in jure and then in judicio, constituted the ordo judiciorum priva-
Pro- torum. Early in the Empire, however, it became the
cedure practice in certain cases to abstain from adjusting a
extra formula and making a remit to a judex, and to leave the ordinem. cause in the hands of the magistrate from beginning to end.
In these cases, speaking generally, the magistrate acted as an administrative official. Such cases did not necessarily come before the ordinary judicial praetors; on the contrary, they were committed as a rule to special officials (e.g. consuls) who were appointed to decide them by the emperors. This kind of procedure was adopted sometimes because the claim that was being made rested rather on moral than on legal right, and sometimes in order to avoid unnecessary disclosure of family misunderstandings. Thus, the earliest questions that were raised about testamentary trusts were. sent for consideration and disposal to the consuls, apparently because, in the existing state of jurisprudence, it was thought incompetent for a beneficiary to maintain in reference to the heir (who had only been requested to comply with the testator's wishes) that he was bound in law to pay him (dare oportere) his bequest. Had the difficulty arisen at an earlier period, and in the heyday of the constructive energy of the praetors, they would probably have solved it with an actio in factum. As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it,—the praetor fidei commissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tutelaris; while fiscal questions in which a private party was interested went to a praetor fisci, whose creation was due to Nerva. Claims for aliment between parent and child or patron and freedman rested on natural duty rather than on legal right; they could not therefore well be made the subject-matter of a judicium, and consequently went for disposal to the consuls or the city prefect, and in the provinces to the governor. Questions of status, especially of freedom or slavery, at least from the time of Marcus Aurelius, were also disposed of extra ordinem; and so were claims by physicians, advocates and public teachers for their honoraria, and by officials for their salaries, the Romans refusing to admit that these could be recovered by an ordinary action of location. In all those extraordinary cognitions the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party complained against; it was for the magistrate to require the attendance of the latter (evocatio) if he thought the complaint relevant. The decision was a judicatum or decretum according to circumstances.
Jural Remedies flowing directly from the Magistrate's Imperium?--Direct Great as were the results for the law of the multiplication and simplification of judicia through the formular system,
maids- it may be questioned whether it did not benefit quite as
terlsr much from the direct intervention of the praetors and other
inter-
magistrates in certain cases in virtue of the impe'rium reatMo. with which they were invested. This manifested itself principally in the form of (I) interdicts; (2) praetorian stipulations;
See Keller-Wach, Civilprocess, § 81; Bethmann-Hollweg; Rom. Civilprocess, vol. ii. § 122; Bekker, Aktionen, vol. ii. chap. 23; Baron, Gesch. d. rom. Rechts, vol. i. § 220.
= Keller-Wach, ROm. Civilprocess, §§ 74—80; Bethmann-Hollweg, Rom. Civilprocess, vol. ii. §§ 98, 119—121; Bekker, Akt. vol. ii.(3) missio in possessionem; and (4) in integrum restatutso. All these had been in common use during the Republic.
1. The interdicts, have already been referred to as in use under the regime of the jus civile; but their number and scope were vastly increased under that of the jus praetorium. The char-
acteristic of the developed procedure by interdict was this—that in it the praetor reversed the ordinary course did'
of things, and, instead of waiting for an inquiry into the facts alleged by a complainer, provisionally assumed them to be true and pronounced an order upon the respondent, which he was bound either to obey or show to be unjustified. The order pronounced might be either restitutory, exhibitory (in both cases usually spoken of in the texts as a decretum), or prohibitory:—restitutory, when, for example, the respondent was ordained to restore something he was alleged to have taken possession of by violent means, to remove impediments he had placed in the channel of a river, and the like; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g. the body of a freeman he was holding as his slave, or a will in which the complainer alleged that he had an interest; prohibitory, as, for example, that he should not disturb the status quo of possession as between the complainer and himself, that he should not interfere with a highway, a watercourse, the access to a sepulchre, and so forth. If the respondent obeyed the order pronounced in a restitutory or exhibitory decree, there was an end of the matter. But frequently, and perhaps more often than not, the interdict was only the commencement of a litigation, facilitated by sponsions and restipulations, in which' the 'questions had to be tried (1) whether the interdict or injunction was justified, (2) whether there had been breach of it, and, (3) if so, what damages were due in consequence. The procedure therefore was Often any-thing but summary.
In the possessory interdicts uti possidetis and utrubi in particular it was extremely involved, due to some extent to the fact that they were double interdicts (interdicta duplicia), i.e. addressed indifferently to both parties. Gaius says, but, as' most modern writers think, erroneously; that they had been devised as ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as possessor, was to have the advantage of standing on the defensive in the rei vindicatio.4 That they were so used in his time, as in that of Justinian, cannot be doubted. But it is amazing that they should have been, for they were much more cumbrous than the 'vindicateo to which they led up: Take the interdict uti possidetis, which applied 'to immovables, as utrubi did to movables. Both parties being present, the praetor addressed them to this effect: " I forbid that one of you two who does not possess the house in question to use force in order to prevent the other who is in possession, provided he is so neither by clandestine or violent exclusion of the first, nor in virtue of a grant from him during pleasure, from continuing ,to possess as at present." It is manifest that this decided nothing; it was no morethan a prohibition of disturbance of the status quo; it left the question entirel . open which of the parties it was that was in possession, and whic that was forbidden to interfere. The manner of its explication was somewhat singular. Each of the parties was bound at once to commit what in the case of one of them must have been a breach of the interdict, by a pretence of violence offered to the other (vis ex conventu) ;5 each of them was thus in a position to say to the other: " We have both used force; but it was you alone that did it in defiance of the interdict, for it is I that am in possession." The interim enjoyment of the house was then awarded to the 'highest bidder, who gave his stipulatory' promise to pay rent to his adversary in the event of the latter being successful in the long run; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict; and on these, four in number, formulae were adjusted and sent to a judex for trial. If the procedure could not thus be explicated, because either of the parties declined to take part in the vis ex conventu, or the bidding, or the sponsions and restipulations, he was assumed to be in the wrong, and, by what was called a secondary interdict, required to yield up his possession or detention and to abstain from disturbing the other in all time coming." Whatever we may think of the action system of the Romans in the period of the classical jurisprudence, one cannot help wondering at a
chaps. 16—18; Baron, vol. i. §§ 216—219. Procedure in these cases is also sometimes included under the term cognitio extraordinaria.
, In addition to the authorities in last note, see K. A. Schmidt, Das Interdiktenverfahren d. Rom. in geschichtl. Entwickelung (Leipzig, 1853) ; Machelard, Theorie des interdits en drdit romain (Paris, 1864) ; Karlowa, Rom. R. G. ii. pp. 313 seq. ; Ubbelohde, Die Interdicte d. rom Rechts, 1889—96 (in Gluck's Pandecten Serie d. Bucher, 43 and 44) ; Jobbe-Duval, La Procedure civile cites les 'Romani (1896), i. pp. 207 seq.
' If that had been their original purpose, they must have been unknown as long as a rei vindicatio proceeded per sacramentum;for in the sacramental real action both parties vindicated, and both consequently were at once plaintiffs and defendants.
i So Gaius calls it; it was probably the 'same thing as the vis moribus facia referred to by Cicero, Pro Caec. 1, § 2, 8, § 22. '
CODIFICATION]
procedure so cumbrous and complex as that of their possessory interdicts.
a. A praetorian stipulation' was a stipulatory engagement imposed upon a man by a magistrate or judge, in order to secure a
Prim- third party from the chance of loss or prejudice through
tartan some act or omission either of him from whom the engage-
emu- meat was exacted or of some other person for whom he was
batons.
responsible. Although called praetorian, because the eases
in which such stipulations were exigible were set forth in the Edict, there can be no question that they originated in the jus civile; in fact, they were just a means of assuring to a man in advance the benefit of an action of the jus, civile whereby he might obtain reparation for any injury suffered by him through the occurrence of the act or omission contemplated as possible. They were enforced nearly always by granting or refusing an action or by missio in possessionem. Ulpian classifies them (rather illogically) as cautionary (cautionales), judicial and common. The first were purely pre-cautionary, and quite independent of any action already in dependence between the party moving the magistrate to exact the stipulation and him on whom it was desired to impose it. There were many varieties of them, connected with all branches of the law--, for example, the cautio damni infecti, security against damage to a man's property in consequence, say, of the ruinous condition of his neighbour's house, the cautio usufructuaria that property ,usufructed should revert unimpaired to the owner on the expiry of the usufructuary's life interest, the aedilian stipulation against faults in a thing sold, and so forth. In all these cases the stipulation or cautio was a guarantee against future loss or injury, usually corroborated by sureties, and made effectual by an action on the stipulation in the event of loss or injury resulting. Judicial stipulations, according to Ulpian's classification, were those imposed, by a judge in the course of and with reference to an action in dependence before him, as, for example, the cautio judicatum solvi (that the defendant would satisfy the judgment), the cautio de dolo (that a thing claimed in the action would not be fraudulently impaired in the meantime) and many others. Common were such as might either be imposed by a magistrate apart from any depending action or by a judge in the course of one, such as that taken from a tutor or curator for the faithful administration of his office, or from a procurator that his principal would ratify what he did.
3. Missio in possessionem was the putting of a person in possession provisionally in the first instance, either of the whole estate of Mlssio another (missio in bona) or of some particular thing belong-
/n ing to him (missio in rem). The former was by far the more possess!- important. It was resorted to as a means of execution ahem. not only against a judgment-debtor but also against'a man who, fraudulently kept out of the way and thus avoided summons in an•action, or who, having been duly summoned, would not do what was expected on the part of a defendant; against the estate of a person deceased to which no heir would enter, thus leaving creditors without a debtor from whom they could enforce payment of their claims; and also against the estate that had belonged to a person who had undergone capitis deminutio, if the family head to whom he had subjected himself refused to be responsible for his debts. Missio in rem was granted where, for example, a man refused to give cautio damni infecti; the applicant was then put in possession of the ruinous property for his own protection.
4.In integrum restitutio,' reinstatement of an individual, on
grounds of equity, in the position he had occupied before some occur-
rence which had resulted to his prejudice and for which no
In la- other legal remedy existed was one of the most remarkable
tagrum manifestations of the exercise of magisterial imperium. It
rest," was not that the individual in question, either directly by
two. action or indirectly by exception, obtained a judgment that either rendered what had happened comparatively harmless or gave him compensation in damages for the loss he had sustained from it, but that the magistrate-and it could only be the praetor, the urban or praetorian prefect, a provincial governor or the emperor himself—at his own hand pronounced a decree that as far as possible restored the status quo ante. It was not enough, however, to entitle a man to this extraordinary relief, that he was able to show that he had been taken advantage of "to his hurt, and that no other adequate means of redress was open to him; he required in addition to be able to found on some subjective ground of restitution, such as minority, or, if he was of full age, intimidation which could not be resisted, mistake of fact, fraud, absence or the like. It required also to be applied for within a limited period--originally an annus ulilis, but under Justinian a quadriennium—counting from the time the party was in a position to make the application. What should be held to amount to a,sufficient ground of restitution, either objective or subjective, was at first left very much to the discretion of the magistrate; but even here practice and jurisprudence in time
Schirmer, Ueber die pratorischen Judicial-Stipulationen (Greifswald, 1853); Keller-Wach, Civilprocess, § 77; Bekker, Aktionen, ii. chap. 16.
2 Savigny, System d. rem. Rechts. vol. vii. §§ 315-343; Karlowa, Rom. R. G. ii. pp. 1064-1104; Keller-Wach, op. at. § 99; Bekker, Aktionen, ii. chap. 18.569
fixed the lines within which he ought to confine himself, and made the principles of in integrum restitutio as well settled almost as those of the actio quad metus causa or the actin de data.
V. THE PERIOD OF CODIFICATION
(Diocletian to Justinian.)
i. Historical Events that Influenced the Law.
Supremacy of the Emperors as Sole Legislators.—From the time of Diocletian onwards the making of the law was exclusively in the hands of the emperors. The senate still existed, Emperors but shorn of all its old functions alike of government sole leg's., and legislation.' The responses of patented jurists Istors.
were a thing of the past. It was to the imperial consistory alone that men looked for interpretation of old law or promulgation of new.
In the reign of Diocletian rescripts were still abundant; but the constitutions in the Theodosian and Justinianian Codes from the time of Constantine downwards are mostly of a wider scope, and of the class known as general or edictal laws (leges generales edictales). It would be wrong, however, to infer that rescripts had ceased; for Justinian's Code contains various regulations as to their form, and the matter is dealt with again in one of his Novels. The reason why so few are preserved is that they were no longer authoritative except for the parties to whom they were addressed. This was expressly declared by the emperors Arcadius and Honorius in 398 in reference to those they issued in answer to applications for advice froth officials; and it is not unreasonable to assume that a limitation of the same sort had been put at an earlier date on the authority of those addressed to private parties. Puchta is of opinion that the enactment of Honorius and Arcadius applied equally to decreta, for the reason that during this period matters of litigation did not come under the cognisance of the emperors except on appeal, and that under the new arrangements of Constantine the judgment of affirmance or reversal was embodied in a rescript addressed to the magistrate from whom the appeal had been taken. The rule of Arcadius and Honorius was renewed in 425 by Theodosius and Valentinian, who qualified it, however, to this extent—that, if it contained any distinct indication that the doctrine it laid down was meant to be of general application, then it was to be received as an edict or lex generalis. To this Justinian adhered in so far as rescripts in the old sense of the word were concerned; but he declared that his judgments (decreta) should be received everywhere as laws of general application, and so should any interpretation given by him of a lex generalis, even though elicited by the petition of a private party. The imperial edicts, adjusted in the consistory, were usually addressed to the people, the senate or some official, civil, military or ecclesiastical, according to the nature of their subject-matter.
Influence of Christianity."--A disposition has sometimes been manifested to credit nascent Christianity with the humaner spirit
which began to operate on some of the institutions of the law in the first century of the Empire, but which in a previous section we have ascribed to the infiltration into the jus civile of doctrines of the jus naturale, the product finance.
of the philosophy of the Stoa. The teaching of Seneca did
quite as much—nay, far more—to influence it then than the lessons that were taught in the little assemblies of the early converts. It would be a bold thing to say that, had Christianity never gained its predominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years proressed, most of those amendments in the law of the family and the faw of succession that were amongst the most valuable contributions of the imperial constitutions to the private law. It may well be that that spirit was intensified and rendered more active with the growth of Christian belief ; but not until the latter had been publicly sanctioned by Constantine, and more especially after Theodosius declared it to be the religion of the state, do we meet with incontestable records of its influence.. We find them in enactments in favour of the church and its property, and of its !privileges as a legatee; in those conferring or imposing on the bishops a super-vision of charities and charitable institutions, and a power of interfering in matters of guardianship; in the legitimation per subsequens matrimonium of children born of concubines; in the introduction of a mode of manumitting slaves in facie ecclesiae;
' There was a senate both at Constantinople and at Rome during the later Empire. In his History, Zosimus, n1. i 1, says: ['Iavatavbs] Mesa thv rpvaast [Kuvrravrrvoterasi] 'yepouulav lxeu rda,rep rp Peegv.
Both senates were addressed by the emperors on matters of legislation. See Cod. Theod. vi. 2.
' See Troplong, De l'influence du christianisme sur le droit civil des Romains (Paris, 1843, and subsequently) ; Merivale, The Conversion of the Roman Empire (Boyle Lectures for 1864) (London, 1864), particularly lect. iv.; Allard, Le Christianisme et l'empire roman (2nd ed., Paris, 1897).
in the recognition of the efficacy of certain acts done in presence of two or three of the clergy and thereafter recorded in the church registers; in the disabilities as to marriage and succession with which heretics and apostates were visited, and in a variety of minor matters. Of greater importance were three features for which it was directly responsible—the repeal of the caduciary provisions of the Papia-Poppaean law, the penalties imposed upon divorce, and the institution of the episcopalis audientia.
The purpose of the caduciary law was to discourage celibacy and encourage fruitful marriages; but legislation in such a spirit could not possibly be maintained when celibacy had come to be inculcated as a virtue, and as the peculiar characteristic of a holy life. The penalties alike of orbitas and coelibatus were abolished by Constantine in the year 320. The legislation about divorce, from the first of Constantine's enactments on the subject down to those of Justinian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the ill-advised work of his predecessors and substituting legislation of his own quite as complicated and futile, thought of interfering with the old principle that divorce ought to be as free as marriage and independent of the sanction or decree of a judicial tribunal. Justinian was the first who, by one of his Novels, imposed a condition on parties to a divorce of common accord (communi consensu), namely, that they should both enter a convent, otherwise it should be null; but, so distasteful was this to popular feeling, and so little conducive to improvement of the tone of morals within the conventual precincts, that it was repealed by his successor. The legislation of Justinian's predecessors and the bulk of his own were levelled at one-sided repudiations, imposing penalties, personal and patrimonial (i) upon the author of a repudiation on some ground the law did not recognize as sufficient—and the lawful grounds varied almost from reign to reign—and (2) upon the party whose misconduct gave rise to a repudiation that was justifiable. The bishop's court (episcopale judicium, episcopalis audientia) had its origin in the practice of the primitive Christians, in accordance with the apostolic precept, of submitting their differences to one or two of their brethren in the faith, usually a presbyter or bishop, who acted as arbiter. On the state recognition of Christianity the practice obtained legislative sanction, Constantine giving the bishop's court concurrent jurisdiction with the ordinary civil courts where both parties preferred the former, and by a later enactment (whose authenticity, however, is open to some doubt) going so far as to empower one of the parties to a suit to remove it to the ecclesiastical tribunal against the will of the other. He also declared that the judgments were to be enforced by the civil courts). For various reasons, advantage was taken of this power of resorting to the bishop to an extent which seriously interfered with the proper discharge of his spiritual functions, so that in 398 Arcadius in the Eastern Empire judged it expedient to revert to Constantine's original rule, and, at least as regarded laymen, to limit the right of resort to the episcopal judicatory to cases in which both parties consented. The same thing was done by Valentinian in the Western Empire in '452. It is impossible to say with any approach to exactitude what effect this intervention of the clergy as judges in ordinary civil causes—for they had no proper criminal jurisdiction—had on the development of the law. But it can hardly have been without some influence in still further promoting the tendency to subordinate act and word to will and intention, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and considerations of natural right.
Abandonment of the Formulae System of Procedure.2--The formular system, with its remit from the praetor to a sworn judex who was New to try the cause, was of infinite advantage to the law; for methods the judgment was as a rule that of a free and independent
of pro- citizen, untrammelled by officialism, fresh from some centre
sedum.
of business, chosen by, and in full sympathy with, the
parties between whom he had to decide. Such a system
was incompatible with the autocratic government of Diocletian and
Constantine; and it is with no surprise that we find the former of
these sovereigns instructing the provincial governors that in future,
unless when prevented by pressure of business (or, according to
a later constitution of Julian's, when the matter was of trifling
importance), they were not to remit them but were themselves to hear
the causes brought before them from first to last, as had previously
been the practice in the extraordinariae cognitiones. The remit in
the excepted cases was not, as formerly, to a private citizen, but
to what was called a judex pedaneus, who acted as an inferior, sub-
stitute of the magistrate and was probably a matriculated member
of the local bar; and for a time his delegated authority was embodied
1 The truth of this as well as the previous rule depends on the authenticity of a Sirmondian constitution. See Cuq, Inst. Jurid. ii. p. 868 n.
2 Wieding, Der Justinianeische Libellprocess (Vienna, 1865) ; Bethmann-Hollweg (Gesch. d. C.P.), vol. iii. (1866); Muther (rev. Wieding), in the Krit. Vierteljahrschrift. vol. ix. (1867), pp. 161 seq., 329 seq.; Wieding, in same journal, vol. xii. (187o), pp. 228 seq.; Bekker, Aktionen, vol. ii. chaps. 23, 24; Cuq, Inst. Jurid. 2nd ed. u. pp. 875 seq.in a formula after the old fashion. But even this exceptional use of it did not long survive, for an enactment by the two sons of Constantine, conceived in terms the most comprehensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntary. The result was, not only the formal disappearance of the distinction between the proceedings in jure and in judicio (judicium receivin a more extensive meaning) but the practical (though not formal disappearance also of the distinctions between actions in jus and in factum, and between actiones directae and actiones Wiles, the con-version of the interdict into an actin ex interdicto, admission of the power of amendment of the pleadings, condemnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent, and execution accordingly by the aid of officers of the law.
Under the new system a process was full from first to last of intervention by officials. The in jus vocalic of the XII. Tables —the procedure by which a plaintiff himself brought his adversary into court—became a thing of the past. So also did the vadinionium. In the earlier part of the period the proceedings commenced with the litis denuntiatio introduced in the time of Marcus Aurelius and remodelled by Constantine; but under Justinian (though probably begun before his reign) the initial step was what was called the libellus conventiortis. This was a short and precise written statement addressed by the plaintiff to the court, explaining (but with-out detail) the nature of the action he proposed to raise and the claim he was making, which was accompanied by a formal under-taking to proceed with the cause and follow it out to judgment; under penalty of having to pay double costs to the defendant. If the judge was satisfied of the relevancy of the libel, he pronounced an interlocutor (interlocutio) ordaining its service on the respondent; this was done by an officer of the court, who cited him to appear on a day named, usually at a distance of one or two months. The defendant, through the officer, had to put in an answer (libellus contradictionis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment: If defendant did not appear after three summonses the case was heard and decree given in his absence. On the day aps pointed the parties or their procurators were first heard on any dilatory pleas, such as defect of jurisdiction; if none were offere d, or those stated repelled, they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentum calumniae), and their counsel doing the same.
From this point, which marked the litis contestatio or joinder of issue, the procedure was much the same as that in judicio undei the formular system. Evidence was taken and judgment given. But in all cases in which the demand was that a particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution might be specific and effected through officers of the law (manu militari). Where, on the other hand, the condemnation was pecuniary, the usual course, where performance was not made, was for the judge, through his officers, to take possession of such things belonging to the defendant as were thought sufficient to satisfy the judgment (eiignus in cdusa judicati captum), and they were eventually sold judicially if the defendant still refused to pay; the missio in bona of the classical period was not resorted to except in the case of insolvency.
The Valentinian Law of Citations.3—This famous enactment, the production of Theodosius (II.), tutor of the youthful Valentinian III., was issued from Ravenna in the year 426, yarenand was addressed to the Roman senate. It ran thus:
" We accord our approval of all the writings of Pa- j w on; pinian, Paul, Gaius, Ulpian and Modestine, conceding to attatbes. Gaius the same authority.that is enjoyed by Paul, Ulpian
and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scientia) of those earlier writers whose treatises and statements of the law the aforesaid five have itnported into their own works,—Scaevola, for example, and Sabinus, and Julian, and Marcellus,—and of all others whom they have been in the habit of quoting as authorities (omniumque quos celebrartint), provided always, as their antiquity makes them uncertain, that the texts of those earlier jurists are verified by collation of manuscripts.4 If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side; if the number on each side be the same, that one shall prevail which has the support of Papinian; but, whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two. [Paul's and Ulpian's notes on his writings, however, as already enacted, are to be disregarded.] Where opinions are equal, and none entitled to preference, we leave it to the discretion of the judge which he shall adopt."
Theod. Cod. i. 4, 3; Puchta, in the Rhein, Museum f. Jurisprud. vol. v. (1832), pp. 141 seq., and Verm. Schriften (Leipzig, 1851), pp. 284 seq. ; Karlowa, Rom. Rechtsgesch. vol. i. pp. 933 seq. Sohm, Inst. § 21, on. 1 and 2, and authorities there cited.
4 There is, however, a good deal of doubt as to what is meant by the words collation codicum in this Edict. See Sohm as in preceding note, and authorities cited by him.
the large mass of statutes through which the law was dispersed, and which it was next to impossible for any ordinary mortal to master. His scheme was eventually to compile one single code from materials derived alike from the writings of the jurists, the Gregorian and Hermogenian collections of rescripts, and the constitutions from the time of Constantine downwards. His language leaves little doubt that it was his intention to have this general code carefully prepared, so as to make it a complete exponent of the existing law, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collection of constitutions which he directed his commissioners meantime to prepare, and which was to contain even those that were merely of historical interest (provided only it was made clear how later enactments had affected them), was to be the first step in the execution of his project. For some reason or other nothing followed upon this enactment, and in 435 a new commission of sixteen persons was nominated to collect
Papinian, to be of the same authority, and degraded the function of the constitutions, but nothing was said in their instructions about the judge in most cases—so far at least as a question of law was con- I anything ulterior. They were directed, however, to deal with .their cerned—to the purely arithmetical task of counting up the names material in a systematic way, as by arranging the constitutions which the industry of the advocates on either side had succeeded in
adducing in support of these respective contentions. It is probable that, from the days of Hadrian down to Severus Alexander, when the emperor in his council had to frame a rescript or a decree, its tenor would be decided by the vote of the majority; but that was after argument and counter-argument, which must in many cases have modified first impressions. Taking the votes of dead men, who had not heard each other's reasons for their opinions, was a very different process. It may have been necessary; but it can have been so only because a living jurisprudence had no existence,—because the constructive talent of the earlier Empire had entirely disappeared.
ii. Ante-Justinian Collections of Statutes and Jurisprudence.
This constitution has always been regarded as a signal proof of the lamentable condition into which jurisprudence had sunk in the beginning of the 5th century. Constantine, a hundred years earlier, had condemned the notes of Ulpian and Paul upon Papinian. There were no longer any living jurists to lay down the law (jura condere) ; and, if it was to be gathered from the writings of those who were dead, it was perhaps as well that the use of them should be regulated. The Valentinian law proceeded so far in the same direction. It made a selection of the jurisconsults of the past whose works alone were to be allowed to be cited,—Papinian, Paul, Ulpian and Modestine, the four latest patented counsel of any distinction; Gaius, of authority previously only in the schools, but whose writings were now approved universally, notwithstanding that he had never possessed the jus respondendi; and all the earlier jurists whose dicta these five had accepted. But it went yet a step further, for it declared all of them, with the sole exception of
Of cardinal importance for this period were the collections of
imperial constitutions made prior to Justinian. There Cohen- were three of these, viz. the Gregorian, the Hermogenian ~dsatoof and the Theodosian Codes; 'the first two being the work of Codl- private hands, though they afterwards received statutory
n sanction from Theodosius II., the third being due to that
emperor himself.
Codex Gregorianus.—T his was a collection of imperial constitutions from Hadrian to Diocletian, made by a certain Gregorius about the gregorlan end of the 3rd century(a. 295?),who,in Mommsen's opinion' Code. was at that time a professor at the law school of Beirut.
Only fragments of it have come down to us, obtained chiefly from Alaric's Breviary, the Lex Romana Burgundionum, the Consultatio, the Collatio and the Vatican Fragments mentioned below ; but it was a work of considerable size, divided into books and titles.
Codex Hermogenianus.'—This, like the Gregorian, was compiled in the Eastern Empire, apparently at the end of the 3rd century,
Hermo- but at any rate not later than the year 324. As, however,
genlan it contains a constitution of the year 365 there must have
Code. been subsequent additions to it. Only fragmentary remains
of it are extant, obtained from the same sources as the Gregorian. Its author was a certain Hermogenianus (perhaps the jurist of that name cited in the Digest), and the work seems to have been intended as a sort of supplement to the Gregorian Code. It was a smaller work than the latter, being divided only into titles, and, unlike it, contains no pre-Diocletian constitutions. It has, however, a great number of contemporary ones, issued by Diocletian especially during the years 293 and 294. It was from this work and that of Gregorius that Justinian obtained the constitutions contained in his Code for the period prior to Constantine, and from the language he uses about the two Codes it would seem that they had been regarded in the courts before his time as the only authoritative record of constitutions during the period covered by them.
Codex Theodosianus.—In the year 429 the emperor Theodosius nominated a commission of nine persons to collect the constitutions
Theo- issued by the emperors from Constantine to his own reign.
dostan From the terms of the edict appointing them he seems to have
Code. intended to initiate the preparation,of a body of law which,
if his scheme had been carried into execution, would have rendered that of Justinian unnecessary. In a constitution about ten years later he explains the motives that had actuated him: that he saw with concern the poverty-stricken state of jurisprudence and how few men there were who, notwithstanding the prizes that awaited them, were able to make themselves familiar with the whole range of law; and that he attributed it very much to the multitude of books and
Mommsen suggests (Z. d. Say. Stift., 1889, x. pp. 345 seq.) that the name codex (meaning a volume) was given to them because, instead of being written on papyrus rolls, they were originally written in the form of tabulae publicae and bound together as a parchment volume. Private collections of Constitutions had been made even earlier than Gregorian (e.g. by Papirius Justus).
2 Z. d. Say. Stift. xxii. pp. 139 seq.
Mommsen, Z. d. Say. Stift. (1889), x. pp. 347 seq.; Kipp, Gesch. d. Quellen, pp. 78-79. The fragments of both this and the Gregorian Code, edited by Kruger, are given in the Collectio Juris Antej. by K. M. and S., vol. iii. pp. 236-245.chronologically under definite titles, separating, where necessary, any constitutions dealing with more than one matter into parts, so as to bring each matter under its proper title, and with power otherwise to make such omissions, additions and alterations as seemed good to them for the same object. The work was completed in less than three years and published at Constantinople early in the year 438, with the declaration that it should take effect from the 1st of January following, and a copy was sent to Valentinian, who notified it to the senate at Rome and ordained that it should come into force in the West from the 12th of January 439. The arrangement is in sixteen books, subdivided into titles with rubrics in which the constitutions are as a rule (though not consistently) placed in chronological order. They cover the whole field of law, private and public, civil and criminal, fiscal and administrative, military and ecclesiastical. The private law is contained in the first five books. This code was usually called in later documents
Theodosianus," without codex adjected. All constitutions since Constantine not contained in it were abrogated. The manuscripts in which it has come down to us are very defective, but many lacunae have been filled up from other sources, especially from Alaric's Breviary. Unfortunately the lacunae are principally in the books relating to the private law.4
Novellae Post-Theodosianae.—The imperial constitutions subsequent to the publication of the Theodosianus got the name of Novels
(novellae leges). There were three collections of these, all post.
made in the Western Empire, and they are generally known Theo-
as post-Theodosian Novels. The first collection con- dostan
taming edicts of Theodosius himself, sent by him to Novels. Valentinian III. in 447. was published by the latter emperor
in the following year. The second collection contained in addition to edicts of Theodosius some edicts of Marcian and other emperors of the East, and also some of Valentinian, Majorian and other emperors of the West. The third collection was published in abridged form in Alaric's Breviary. These collections are not extant, but from Alaric's Breviary, with additions from manuscript sources, modern editions of the Novels have been prepared.' There was also a collection of constitutions, issued between the years 331 and 425, nearly all relating to church matters, first published by T. Sirmondus in 1631, and now known as the Sirmondian Constitutions.'
Besides the collections of statutes just mentioned there were a number of juristic works of this period, containing both ,irrrisprastatute law (leges) and common law (jus) in combination, dentia[ made by private individuals. Of these the following, collecwhich have come down to us in a more or less imperfect Hons. condition, are the most important:
The Collatio Legum Mosaicarum et Romanarum7-or, as its title bears, Lex Dei guam praecipit Dominus ad Moysen—is a parallel
of divine and human law, especially in the matter of delicts Collatio. and punishments, the former drawn from the Pentateuch,
and the latter from the works of Gaius, Papinian, Paul, Ulpian, and
4 There have been several editions of the Theodosian Code. That of J. Gothofredus, published after his death in 1652 (ed. with additions by Ritter in 7 vols., Leipzig, 1736-41), is a work of monumental learning and still indispensable on account of its commentary. But the latest and best edition is that of Mommsen, being the last work from the pen of that great master. It has been published at Berlin in 1905 under the title, Theodosiani libri xvi. cum constitutions-
bus Sirmondianis et leges novellae ad Theodosianum pertinentes ediderunt Th. Mommsen et Paulus M. Meyer: I. Theodosiani libri xvi. cum constitutionibus Sirmondianis edidit, adsumpto apparatu P. Krugeri, Th. Mommsen (1905).
' These Novels, so far as preserved, have been published as a second part of Mommsen's edition of the Theodosian Code.
II. Leges ad Theodosianum pertinentes edidit adjutore Th. Mommseno Paulus M. Meyer (1905).
' These are contained in the Mommsen-Meyer edition of the
Theodosianus. -
7 Collectio Juris Antejustiniani, by Kruger and Mommsen,
pp. 107 seq. ; Girard, Textes, pp. 543 seq. ; Kruger, Quell en, pp. 302 seq.
572
Modestine, rescripts from the Gregorian and Hermogenian Codes, and one later general enactment. Its date is probably soon after the year 39o, but its authorship is unknown.,
Fragment¢ Vatican¢ 2—These fragments, discovered by Cardinal Angelo Mai in a palimpsest in the Vatican in 1821, seem to have vatlran formed part of a book of practice, compiled in the Western
Empire and of considerable dimensions. The extant fragment& meats of the Titles into which it was divided deal with
sale, usufruct, dowries, donations, tutories and processional agency, and have been extracted from the writings of Papinian, Paul the Ulpian, an unknown work on interdicts, and the imperial constitutions prior to Theodosius, the latest of which is of the year 372. Its antiquity is therefore probably about the same as that of the Collatio.3
The Consultatio.4—The so-called Veteris cujusdam Jurisconsultt
Consultatio was first published in 1577 by Cujas, from whom it got
its name. It is a collection of answers by an advocate,
Consul- supported by citations of texts (consultations) upon
tatlo. questions of law submitted for his opinion by a solicitor, and is of value for the extracts it contains from Paul's Sentences and the three above-mentioned codes. It is thought to have been written in Gaul in the end of the 5th or beginning of the 6th century.
Syro-Roman Law-Books—This was a sort of manual of Roman
law drawn up in the East, apparently in the Greek language, at an
uncertain date, but some time between Theodosius and
Syro- Justinian. Translations of it into Syriac, Arabic and
R"ma Armenian have come down to us, and it would seem that the
Law- work in these translations was greatly made use of in legal
Boos. practice in the East (especially in the ecclesiastical Courts) for several centuries, having in some places more authority attached to it than had the Digest and Code of Justinian. As a repertory of Roman law it is of little value, as it misunderstands or varies from that law in many respects, but it is of importance as showing how firmly Hellenic law and customs maintained themselves in the East during the decay of the Empire .9
Light has also been thrown upon the ante-Justinian law by the numerous papyri documents, mostly in Greek, that have been in recent years recovered in Egypt (especially by Grenfell and Hunt) and elsewhere? Mitteis, Gradenwitz and others have done much to elucidate these, by numerous publications. But to give any-thing like a consecutive account of them would occupy much space and cannot be attempted here.$
Romano-Barbarian Codes (Leges Romanae) °—Besides the collections of statutes and juristic law mentioned in this section, there Romano- were several official collections made prior to Justinian Barbarian in Western Europe, after it had fallen under the dominion Codes. of Gothic and other kings. There are three of these
which require special notice—each of them compiled from documentary sources of ante-Justinian law. Though of consider-able use in explicating difficulties and filling up lacunae in the earlier law sources, they must be used with caution for that purpose, as they contain not a few corruptions of the original texts. They are:
I. Edictum Theoderici.1°—This was compiled at the instance of
Theoderic, king of the Ostrogoths, not long after the year 500 (not
later than 515). Theoderic after he had conquered Italy
desired to be representative of the emperor and always
acknowledged his suzerainty. He did not aim at being
an independent legislator, and his Edict is therefore of
limited scope and in no proper sense a code. Its materials were
1 For opinions as to its author, see Girard, Lc. p. 543. He must have been an ecclesiastic.
2 Collectio Jur. Antej. iii. pp. 1 seq. (ed. Mommsen) ; Karlowa, Rom. R.G. i. pp. 969 seq.; Kruger, Quellen, pp. 298-13o2.
3 Mommsen,.however (Collectio, iii. p. I1), thinks it was compiled about the time of Constantine.
Collect. Jur. Antej. in. pp. 203–20; Girard, Textes, pp. 590 seq. See Kruger, Quellen, pp. 305-7.
Ed. by Bruns and Sachau under the name Syrisch-Romisches Rechtsbuch aus dem funften Jahrhundert (Leipzig, x88o). See Esmein, Melanges, pp. 403 seq.; Ferrini, Z. d. Say. Stift. (1902), xxiii. pp. lox seq.; Kruger, Quellen, pp. 320 seq.
4 The first volume of a complete collection of the versions of the Syrian Law-Book, with a translation into German by Sachau, was published at Berlin in 1907.
7 E.g. the Amherst Papyri, by Grenfell .and Hunt. See Archiv
fur Papyrusforschung (since 1900). 3 For an account of the papyri found at Sinai, containing parts of a commentary on Ulpian, ad Sabinum, supposed to have been written after A.D. 438, Fee Muirhead, His'. Introd. p. 374, and Girard, Textes, p. 578. For other papyri, see Girard, op. cit. pp.
839 See Kruger, Gesch. d. Quellen, § 41; Brunner, Deutsche Rechtsgesch. (1887), i• §§ 49, 50.
19 Ed. Bluhme in Pertz's Monumenta Germaniae, Leges, v. pp. 145 seq. (Hanover, 1875) ; see Savigny, Gesch. d. r. R. ii. pp. 172 seq. ; Gaudenzi in Z. d. Say. Stift. (Germ. Abtheil.), 1886, vie pp. 29 seq.[CODIFICATION
mainly drawn, without however indication given, from the writings of Paul, the Gregorian, Hermogenian and Theodosian Codes, andl the post-Theodosian Novels. Divided into 155 chapters, with no systematic arrangement, it touches upon all branches of the law,. public and private, but especially criminal law and procedure.. Though it contains a certain infusion of Gothic law and was professedly intended to apply to all Theoderic's subjects, both Goths and Romans, it seems nevertheless generally admitted that this idea cannot have been fully realized, and that in some matters with which it deals, e.g. the law of the family, Gothic customs must still have continued to prevail for Gothic subjects.
2 The Lex Romana Wisigothorum or Breviarium Alarici or Alaricianum" (both of these titles are modern) was a much more ambitious and important collection than the one last ~E'est mentioned. It was compiled by a commission of lawyers Gothic appointed by Alaric II., king of the Western Goths, with Code. approval of the bishops and nobles, and published at
Aire in Gascony in the year 506. The compilers selected their material partly from the leges (imperial constitutions after Diocletian) and partly from the vetus jus (juristic law), taking what they considered appropriate, without materially altering the text of their authorities except in the way of excision of passages that were obsolete or superseded. For the leges they utilized some' 400 of the 3400 enactments (according to Haenel's estimate) of the Theodosian Code and about 30 of the Post-Theodosian Novels ; for the jus they made use of Paul's Sentences, Gaius's Institutes (in a corrupt and greatly abridged form in two books dating probably from, and adapted to the law of, the 5th century), the first book of Papinian's Responses (a single responsum), and the Gregorian and Hermogenian Collections (which were treated as jus). All of these, except Gaius for the reason mentioned), were accompanied by interpretatiOnes (i.e. for the most part explanatory adaptations ofthe passages to the existing practice) which were largely borrowed from books in current use for purposes of instruction, and which resemble the interpretation of the XII. Tables in that they are often not so Much explanatory of the text as qualificative or corrective. The Breviary exercised great influence in western Europe; and there is no question that, until the rise of the Bologna school in the end of the i th century, it was from it more than from the books-of Justinian that western Europe, other than Italy, acquired its scanty knowledge of Roman law.
3. The Lex Romana Burgundionum 12—to which erroneously, about the 9th century, owing to a mistake of a MS. transcriber, the name Papianus (a contraction of Papinianles) was T6eBur. given. It is a collection which King Gundobad, when "midis¢ publishing his code of native law (Lex Gundobada) for his code.
native subjects, had promised should be prepared for the
use of his Roman subjects. It was published probably before his death in 516. It deals with private law, criminal law and prqq-~ cedure, distributed through forty-seven titles, and is arranged much in the same order as the Gundobada, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary; its juristic sources are Paul's Sentences and a work of Gaius of which we cannot say with certainty that it is his Institutes. It also contains some interpretations of the same character as those in the Breviary, but whether taken directly from the latter or not is disputed. After the conquest of the Burgundian kingdom by the Franks this code ceased to have any direct authority, but was used in the courts as a sort of supplement to the Breviary, being often bound in the same volume with the latter.
iii. Justinian's Legislation.
Justinian's Collections and his own Legislation.—The history of Justinian outside his legislative achievements, and his collections in detail, are dealt with in the article jus, JUSTINIAN I. Ambitious to carry out a reform more tin/ales complete even than that which Theodosius had planned coma,-but failed to execute, he took the first step towards it dam' little more than six months after the death of his uncle Justin, in the appointment of a commission to prepare a collection of statute law (leges), among which he included the rescripts of the Gregorian and Hermogenian Codes, which were commonly at this period described as jus. It was published in April 529; and in rapid succession there followed his Fifty Decisions
u Ed. Haenel (Leipzig, 1849) ; Conrat (Cohn), Brev. Alaricianum (1903). This work of Cohn is a systematic arrangement of the Breviary, with the Latin text as given by Haenel, and a translation into German of the inter pretatio (or, where there is none, of the text itself), and some explanatory notes. See Karlowa, Rom. R.G. i. pp. 976 seq. ; Kruger, Quellen, § 4o.
12 Ed. Bluhme in Pertz's Monumenta German. Hist. Leges, iii. pp. 505 seq. (Hanover, 1863) ; ' de Sails Monism Germ. Leg. sec. I. and u. p. 1 (Hanover, 1892). See Karlowa, Rom: R.G. 1. PP. 983-985.
Edict of Theoderic.
(529-531), his Institutes) (November 21, 533), his Digest of excerpts from the writings of the jurists (December 16, 5, 3),2 and the revised edition of his Code, in which he incorporated his own legislation down to date (November 16, 534) .3 From that time down to his death in 565 there followed a series of Novels (novenae constitutions); mostly in Greek, which were never officially collected, and of which probably some have been lost.'
Taking his enactments in the Code and • his Novels together, we have of Justinian's own legislation not far short of boo His own constitutions. Diocletian's contributions to the Code
enact- are more than twice as numerous; but most of them
meats. professed to be nothing more than short declaratory statements of pre-existing law, whereas Justinian's, apart from his Fifty Decisions, were mostly reformatory enactments, many of those in the Novels as long as an average act of parliament, and often dealing with diverse matters under the same rubric. They cover the whole field of law, public and private, civil and criminal, secular and ecclesiastical. It cannot be said that they afford pleasant reading: they are so disfigured by redundancy of language, involved periods and nauseous self-glorification. But it cannot be denied that many of those which deal with the private law embody reforms of great moment and of most salutary tendency. The emperor sometimes loved to ' pose as the champion of the simplicity and even-handedness of the early law, at others to denounce it for its subtleties; sometimes he allowed himself to be influenced by his own extreme asceticism, and now and again we detect traces of subservience to the imperious will of his consort; but in the main his legislation was dictated by what he was pleased to call humanitas so far as thg.law of persons was concerned, and by naturalis ratio and public utility so far as concerned that of things. The result was the eradication of almost every trace of the old jus Quiritium, and the substitution for it, under the name of jus Romanum, of that cosmopolitan body of law which has contributed so largely to almost every modern system.
Changes in the Law of the Family.—With the Christian emperors, from Constantine downwards, almost the last traces disappeared of
Law of the old conception of the familia as an aggregate of persons
family and estate subject absolutely to the power and dominion
amil of its head. Manus, the pewee in a husband over his relations.
wife and her belongings, was a thing of the past; both
stood now on a footing of equality before the law; perhaps it might be more accurate to say, at least with reference to the Justinianian legislation, that the wife was the more privileged of the two in respect both of the protection and the indulgence the law accorded her. With manus the old confarreation and coemptipn had ceased, marriage needing nothing more than simple interchange of consent, except as between persons of rank (illustres) or when the intention was to legitimate previous issue ; in the latter case a written marriage settlement (instrumerttum dotale) was required, and in the former both such a settlement and a marriage in church before the bishop and at least three clerical witnesses, who granted and signed a certificate of the completed union. The legislation of the Christian emperors on the Subject of divorce, largely contributed to by Justinian in his Novels, has already been referred to. In regard to the dos, many new provisions were `introduced, principally for curtailing the husband's power of dealing with it while the marriage lasted, enlarging the right of the wife and her heirs in respect of it, and simplifying the means of recovering it from the husband or his
1 The best edition; is that of Kruger, which is prefixed to the stereotype edition of' the 'Corpus Juris by Mommsen, I{riiger and Schoell, vol. i., and also published separately.
2 The best edition is that of Mom,msen, Digesta fustiniani (2 vols., Berlin, 1866-70), and also vol. L of the stereotype edition of the Corpus Juris mentioned in preceding note. A new and handy edition, however, based on that of Mommsen, by Bonfante and several other Italian professors, is now in course of publication. Books I.-XXVIII. were published up to 1908 (Milan). A coIlotype, facsimile of the Florentine MS. of the Digest is also in course of publication in Italy. Fascicoli I.-VI. have already (1908) appeared (Rome, 1902-7).
The best edition is that of T{riiger, forming vol. ii. of the Corpus Juris last mentioned.
* The best edition is that of Schoen, completed by Kroll in 1895, and forming vol. iii. of the Corpus Juris last mentioned. It contains the Greek texts, Latin Vulgate and a Latin translation more correct than the Vulgate.heirs -when the marriage was dissolved. Between the time of Constantine and that of Theodosius and Valentinian a new form of matrimonial settlement became established. It became apparently a legally sanctioned practice for a man to make (apart from ordinary marriage presents) a settlement on his intended wife either by actual transfer or by promise of a provision which was to remain his property (though without the power of alienation) during the marriage, but to pass to her on his predecease or on divorce by his fault. This got the name of donatio ante nuptias, or sometimes, as being a sort of counterpart for the dos, antipherna. There was some important legislation. about it by the two last-mentioned emperors; Leo and Justin followed suit; and Justinian, in his Code and Novels, published five or six enactments for its regulation. The general result was that, wherever a dos was given or promised on the part of the wife, there a donatio of equal amount was to be constituted on the part of the husband; that, if one was increased during the marriage, a' corresponding increase was to be •made to the other; that it might be constituted or increased after the marriage without infringing the rule prohibiting donations between husband and wife, which caused Justinian to change its name to donatio: propter nuptias; that the wife might demand its transfer to her (to the same extent as she could that of the dos) on her husband's insolvency, but under obligation to apply its income to the main tenance of the family; and that on the dissolution of the marriage by her husband's death or by a divorce for which he was in fault, she had an hypothec and other ample remedies for reducing it into possession.'
The change in the complexion of the relations between husband and• wife under the Christian emperors, however, was insignificant when compared with that which had overtaken the relation between parent and child. Justinian in his Institutes reproduces the boast of Gaius that nowhere else had a father such power over his children as was exercised by a Roman paterfamilias. True it is that the patria potestas in name still held a prominent place in the Justin ianian collections; but it had been shorn of mOst-of' the' prerogatives that. had characterized it in earlier periods. To expose a newborn child was forbidden under penalties. To take the life of a grown-up one—unless it was a daughter slain with her paramour in the act of adultery—was murder; for the domestic tribunal, with the judicial power of life and death in the paterfamilias as its head, had long disappeared.
Further, a parent could no longer sell his child save only when' the child was an infant and he in such extreme poverty as to be unable to support it. Even the right to make a noxal surrender of his son to a party who had suffered from the latter's delict had silently become obsolete ; so greatly had altered sentiment, in sympathy with legislation, curtailed the power of the paterfamilias over those in his potestas. This noxae deditio was formally abolished by Justinian. All that remained of the patria potestas, inshort, in the Justinianian law was little more than would be sanctioned yin most modern systems as natural emanations of the paternal relationship.
Thus he had right of moderate chastisement for offences (for the infliction' of graver punishments he had to apply to the magistrate), of testamentary nomination of guardians, of pupillary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, but subject in this last case to magisterial intervention if used unreasonably.
How the right of the paterfamilias over the earnings and acquisitions of his children was modified by the recognition of the peculium castrense has been shown in a previous page. But the modification was carried to such an extent by the Christian emperors as finally to negative the father's ownership altogether, except as regarded acquisitions that were the outcome of funds advanced by him to his child for his separate use (peculium profecticium). Of some of the child's acquisitions (bona adventicia) his father had, down to the time of Justinian, the life interest and right of administration; but by his legislation even these might be excluded at the pleasure of the parties from whom the acquisitions had been derived or by maladministration of the father.
By the classical law the father's radical right in his son's peculium castrense revived on the latter's death ; for if he died intestate the former appropriated it not as his son's heir, but as an owner whose powers as such had been merely temporarily suspended. But by 'one of the chapters in the famous 118th Novel •orsthe 'law of intestate succession even this prerogative of the paterfamilias was abolished, and all a child's belongings except -his peculium profecticium were recognized as his own in death as well as in life, so that if any of them should pass to his parent on' his intestacy it should ' only be by title of inheritance and in thelabsence of •descendants.
In every other branch of the law of the family the same reforming spirit was manifested. Adoption, of !ffliifamilias was no longer followed in all cases by a change of family for the adoptee, but only when either the adopter was in fact one of his ancestors in whose
s See Esmein, Melanges, pp. 58-7o; Mitteis, Reichsrecht and Volksrecht in d. Ostl. Provinz., deals with its history, pp. 256-312. Though beneficial on the whole, the regulations of Justinian on this matter seem rather too great an interference with the 'freedom of marriage settlements.
potestas he had never been, such as a paternal or maternal grand-father, when there was a natural potestas to underlie and justify the civil one—or when an ancestor gave in adoption a grandchild who was in his potestas but would not become sui juris by his death. The mode of strict adoption also was simplified, the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, was abolished. The modes of legitimation of children born of a concubine, especially that by subsequent marriage of the parents, first introduced by Constantine, were regulated, and the extent of the rights of the legitimated issue carefully defined. Emancipation was simplified in a similar way to that of strict adoption. Tutory at law was opened to the pupil's nearest kinsman, whether on the father's side or the mother's; and the mother herself, or the child's grandmother, might be allowed, under certain conditions, to act as its guardian. Slavery was often converted into the milder condition of colonate; but, even where this did not happen, the rights of owners were not allowed to be abused; for slaves were permitted to claim the protection of the magistrate, and cruelty by a master might result in his being deprived of his human property. Kinship that had arisen between two persons when one or both were slaves (servilis cognatio) was 'recognized as creative not only of disabilities but of rights. The modes of manumission were multiplied, and the restriction of the legislation of the early empire abolished; and a freedman invariably became a citizen, Junian Latinity and dediticiancy being no longer recognized.
Amendments on the Law of Property and Obligation.—In the law of property the principal changes of the Christian Empire were the Law of simplification of the forms of conveyance, the extension property. of the colonate, the introduction and regulation of em.
Fhyteusis and the remodelling of the law of prescription. Simplification of the forms of conveyance was necessary only in the case of res mancipi, for res nec mancipi had always passed by delivery. From the Theodosian Code it is apparent that movable res mancipi usually passed in the same way from very early in the period, and that for the mancipation of lands and houses—for in jure cessio had disappeared with the formular system—a solemnis traditio, i.e. a written instrument and delivery following thereon, and both before witnesses, had been gradually substituted. Of this there is no trace in the Justinianian Code. For Justinian abolished all remains of the distinction between res mancipi and res net mancipi, between full ownership, bonitarian ownership and nudum jus Quiritium, placing. movables and immovables on a footing of perfect equality so far as their direct conveyance was concerned. But, as regarded the possession required of an acquirer to cure any defect in the conveyance, he made a marked difference between immovables and movables. For, amalgamating the old positive usucaption of the jus civile with the negative " prolonged possession " (longi temporis possessio) that had been first introduced for immovables in the provinces (probably by the provincial edict), and afterwards by rescripts of Caracalla for movables,' he declared that possession on a sufficient title and in good faith should in future make the possessor legal owner of the thing possessed by him, provided that the possession of himself and his author had endured uninterruptedly for three years in the case of a movable, and in the case of an immovable for ten years if the party against whom he possessed was resident in the same province, or for twenty if he resided in another one.
The same causes that led to the colonate induced the introduction of emphyteusis,2—an institution which had already existed in some Bmph - of the Eastern provinces when independent, and which
Musk.
came to be utilized first by the emperors, then by the
church, and afterwards by municipalities and private
landowners, for bringing into cultivation the large tracts of provincial
land belonging to them which were unproductive and unprofitable
through want of supervision on the spot. Its nature and conditions
(which bore a certain similarity to the earlier jus in agro vectigali of
the Western Empire, with which it was ultimately fused, and to
hereditary leases sometimes granted in the early Empire) were
carefully defined by Zeno and amended by Justinian. The
emphyteuta, as the grantee of the right was ultimately called, did
not become owner; the granter still remained dominus_ all that the
grantee enjoyed being a jus in re aliena, but so extensive as hardly
to be distinguishable from ownership. It conferred upon him and
his heirs a perpetual right in the lands included in the grant, in con-
sideration of a fixed annual payment to the lord (canon) and due
observance of conventional and statutory conditions; but he was
not entitled to abandon it, nor able to free himself of the obligations
he had undertaken, without the lord's consent. The latter was
entitled to hold the grant forfeited if the canon fell into arrear
for three years (in church lands for two), or if the land-tax was in
arrear for the same period, or if the emphyteuta allowed the lands to
deteriorate, or if he attempted to alienate them (alienare meliora-
' Dig. xliv. 3, 9.
2 See Ella Lattes, Studi storici sopra it Contralto d'Enfiteusi nelle sue relazioni col Colonato (Turin, 1868), chaps. ' and 3; and Francois, De l'Emphyliose (Paris, 1883) ; Beaudouin in Nouv. rev. hist. (1898), pp. 545 seq. ; Karlowa, Rom. R. G. ii. pp. 1268 seq. The name comes from the obligation imposed upon the grantees to make plantations
(itrpurebsty).tiones as the text says) without observance of statutory requirements. These were that he should intimate an intended alienation and the name of the intended alienee to the lord, so that the latter, before giving his assent, might satisfy himself that he would MA be a loser by the transaction; and, if the alienation was to be by sale, he had to state the price fixed, so as to give the lord the opportunity of exercising his statutory right of pre-emption at the same figure. If those requirements were complied with, and the lord (himself declining to purchase) stated no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of 2 % of the sale price or of the value of the lands in consideration of his enforced consent.
The chariges in the law of obligation were more superficial than those in the law of property, and consisted principally ObUga'
in the simplification of formalities and in some cases tloas. in their entire abolition. To describe them, however, would carry us into details which would here be out of place.
Changes in the Law of Succession.—The changes made in the law of succession by Justinian's Christian predecessors, especially Theodosius II. and Anastasius, were far from insignificant; Testa. buthisownwere insome directions positively revolutionary.
meatary
The testament per aes et libram of the jus civile probably menenever obtained any firm footing in the East ; for it was only aloe. by Caracalla's constitution conferring citizenship on all his
free subjects that provincials generally acquired testamenti factio; and by that time a testament bearing externally the requisite number of seals had been recognized as sufficient for a grant of bonorum possessio unchallengeable by the heirs-at-law, even though they were able to prove that neither familiae mancipatio nor testamenti nuncupatio had intervened. Hence the universal adoption of what Justinian calls the praetorian testament, which, however, underwent consider-able reform at the hands of the emperors, notably Theodosius II. and Valentinian III., in the requirement (in the ordinary case) of signature by the testator and subscription by the witnesses, thereby becoming what Justinian calls the tripartite testament. There was much hesitating legislation on the subject before the law was finally established as it stands in the Justinianian books; and even at the last we find it encumbered with many exceptions and reservations in favour of testaments that were merely deeds of division by a parent among his children, testaments made in time of plague, testaments made before a magistrate and recorded in books of court, testaments entrusted to the safe keeping of the emperor, and so forth. Codicils had become deeds of such importance as, in the absence of a testament, to be dealt with as imposing a trust on the heir-at-law; it was therefore thought expedient to deny effect to them unless attested by at least five witnesses. And a most important step in advance was taken by Justinian in. the recognition of the validity of an oral mortis causa trust; for he declared that, if it should be represented to a competent judge that a person on his death-bed had by word of mouth directed. his heir to give something to the complainant, the heir should be required either on his oath to deny the averment or to give or pay what was claimed.3
In the matter of intestacy there had been long a halting between two opinions—a desire still further to amend the law in the direction
taken by the praetors and by the legislature in the Ter- The
tullian and Orphitian senatusconsults, and yet a hesitancy 18th
about breaking altogether from the time-hallowed principle Novel
of agnation. Justinian in his Code went far beyond his predecessors, making a mother's right of succession independent altogether of the jus liberorum; extending that of a daughter or sister to her descendants, without any deduction in favour of agnates thus excluded; admitting emancipated collaterals and their descendants as freely as if there had been no capitis deminutio minima; applying to agnates the same successio graduum that the praetors had allowed to cognates, and so forth.. But it was by his Novels, especially the 118th and '27th, that he revolutionized the system, by eradicating agnation altogether (except as regards adopted children) and settling the canons of descent—which were the same for real and personal estate—solely on the basis of blood kinship, whether through males or females, and whether crossed or not by a capitis deminutio. First came descendants of the intestate, male and female alike, taking per capita if all were of the same degree, per stirpes if of different degrees. Failing descendants, the succession passed to the nearest ascendants, and, concurrently with them to brothers and sisters of full blood (germani) and (by Nov. 127) the children of any that had predeceased. Where there were ascend-ants alone, one-half of the succession went to the paternal line and one-half to the maternal; where there were ascendants and brothers and sisters, or only brothers and sisters, the division was made equally per capita; when children of a deceased brother or sister participated it was per stirpes. In the third class came brothers and sisters of half blood and their children, and grand-children of brothers and sisters german; the division here was on the same principle as in the second class. The fourth class included all other collaterals according to propinquity, apparently to the remotest degree, and without distinction between full and half blood;
inst. ii. 23, § 12.
but among those the nearest in degree excluded the more remote, and when all were of the same degree they took per capita.
A reform effected by Justinian by his 115th Novel ought not to pass unnoticed; for it rendered superfluous all the old rules about
The disherison and praeterition of a testator's children, practi-
11$th cally abolished bonorum possessio contra tabulas as regards
Nova freeborn persons and established the principle that a child
had, as a general rule, an inherent and indefeasible right to be one of his father's heirs in a certain share at all events of his succession, and that a parent had the same right in the succession of his child if the latter had died without issue. The enactment enumerated certain grounds upon which alone it should be lawful for a parent to disinherit his child or a child his parent; declaring that in every case of disherison the reason of it should be stated in the testament, but giving leave to the person disinherited to dispute and disprove the facts when the testament was opened. If a child who had not been disinherited—and one improperly disinherited was eventually in the same position—was not instituted to some share, however small, of his parent's hereditas, he was entitled to have the testament declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting accessory provisions, such as bequests, nominations of tutors, &c.; and if the share to which he was instituted was less than his legitim (legitima or debita portio) he was entitled to an action in supplement. The legitim, which under the practice of the centumviral court had been one-fourth of the share to which the child would have been entitled ab intestate, had been raised by Justinian (by Novel 18) to one-third at least, and one-half where there were five or more entitled to participate. He did not allow challenge of the will to be excluded, as in the earlier querela inofficiosi testamenti, because the testator had made advances to his child during his life or left him a legacy which quantitatively equalled the legitim; his idea was that a child'was entitled to recognition by his parent as one of his heirs, and that to deny him that position without statutory grounds was to put upon him an indignity which the law would not permit.
Amongst the other beneficial changes effected by Justinian may be mentioned the assimilation so far as possible of hereditas and Other bonorum possessio, so that the latter might be taken like changes. the former without formal petition for a grant of it; the
equiparation of legacies and singular trust-gifts, and the application of some of their rules to mortis causa donations; the extension of the principle of " transmission " to every heir without exception, so that, if he died within the time allowed him for considering whether or not he would accept (tempus deliberandi), his power of acceptance or declinature passed to his heirs, to be exercised by them within what remained of the period;' the introduction of entry under inventory (cum beneficio inventarii), which limited the heir's responsibilities and rendered unnecessary the nine or twelve months of deliberation; and the application of the principle of collation to descendants generally, so that they were bound to throw into the mass of the succession before its partition every advance they had received from their parent in anticipation of their shares.
iv. The Justinianian Law-Books.
Their Use in the Courts and in the Schools.—Although the Institutes
were primarily intended to serve as a text-book in the schools,
it was expressly declared that it and the Digest and the
Justin- Code should be regarded as just so many parts of one great
lanian piece of legislation and all of equal authority; and that,
taw- although Digest and Code were but collections of common
books. law and legislation that had proceeded originally from many different hands, yet they were to be treated with the' same respect as if they had been the work of Justinian himself. But, while everything within them was to be held as law, nothing outside them was to be looked at, not even the yolumes from which they had been collected; and so far did this go that, after the publication in 534 of the revised Code, neither the first edition of it nor the Fifty Decisions were allowed to be referred to. If a case arose for which no precedent was to be found, the emperor was to be resorted to for his decision, as being outside his collections the only fountain of the law. To preserve the purity of the texts Justinian forbade the use of conventional abbreviations (sigla) in making transcripts, visiting an offender with the penalties of falsification (crimen falsi). Literal translations into Greek were authorized, and indeed were necessary for many of his subjects; so were indexes and irap6.rtrXa, i.e. summaries of parallel passages, texts or individual titles. Commentaries and general summaries were forbidden under heavy penalties, as an interference with the imperial prerogative of interpretation.' But these prohibitions do not seem to have been enforced, as we have accounts and remains not only of translations but of commentaries, notes, abridgments, excerpts and general summaries even in Justinian's lifetime. These, it is true, were mostly by professors (antecessores), and their productions may have been intended primarily for educational purposes; but they soon passed into the hands of the practitioners and were used without scruple in the courts. A Greek Paraphrase of the Institutes, usually
' Const. Deo Auctore, § 12; Tanta, § 21.attributed to Theophilus, a professor in Constantinople and one of Justinian's commissioners, has been supposed to have been used by him ' in his prelections. It embodies much more historical matter than is to be found in the' Institutes; but it contains a good many inaccuracies and its value has been very differently rated by different critics. Its latest editor, Ferrini, who puts a high estimate on it, is of opinion that the original of it was a reproduction in Greek of Gaius, drawn up at Beirut, which was remodelled after the plan of Justinian's Institutes, and had the new matter of this latter work subsequently incorporated in order to adapt it to the altered conditions; but he denies that there is any sufficient authority for ascribing it to Theophilus. If he be right in assuming that it was really based on a redaction of Gaius, its historical explanations will be received with all the more confidence?
Fate of the Justinianian Books in the East.—The literary work indicate in the preceding section was continued throughout the 6th century. But the next three were comparatively barren, heir the only thing worth noting being the 'EKXoyij riav vbµwv iv fTate in an—6 ico yevoube of Leo the Isaurian in 740, professedly meant. an abstract of the whole Justinianian law amended and rearranged ; but it was repealed by Basil the Macedonian on account of its imperfections and its audacious departure from the law it pretended to summarize. The last-named emperor, followed by his son Leo the Philosopher, set themselves in the end of the 9th and beginning of the loth centuries to the production of an authoritative Greek version of the whole of the Justinianian collections and legislation, omitting what had since become obsolete, excising redundancies, and introducing such of the post-Justinianian legislation as they thought merited preservation. The result was the Basilica (Ta &w aura, sc. vOurga), which was completed and published in the reign of Leo, though begun in the reign of Basil, who also published a sort of institutional work, entitled IIpb ecpov, which was revised and republished by Leo under the name of'Eravayw-y rob vbµov. The Basilica' consists of sixty books, subdivided into titles, following generally the plan of the Justinianian Code, but with the whole law on any particular subject arranged consecutively, whether from Institutes, Digest, Code or Novels (see article BASILICA). Leo's son, Constantinus Porphyrogenitus, made an addition to it in the shape of an official commentary collected from the writings of the 6th-century jurists, the so-called IIapaypa4ai riiv iraaati v, which is now spoken of as the scholia to the Basilica, and has done good exegetical service for modern civilians. Later annotations by jurists of the loth to the 12th century are also called scholia but are of less value. The Basilica retained its statutory authority until the fall of the Byzantine Empire in 1453. But long before that it had fallen into neglect in practice; and though nearly the whole of it and a great part of its scholia have come to us, yet not a single complete copy of it exists. Its place was taken by epitomes .and compendia, the last being the 'Eta,Btp]ws of Constantinus Harmenopoulos about 1345, " a miserable epitome of the epitomes of epitomes," as Bruns calls it, which survived the vicissitudes of the centuries, and finally received statutory authority in the modern kingdom of Greece in the year 1835, in place of the Basilica, which had been sanctioned thirteen years before, in 1822.'
Their Fate in the West.—Before the rise of the Bologna school it was to a much greater extent from the Romano-Barbarian codes than from the books of J ustinian that central:and western Europe, Their apart from Italy, derived their acquaintance with Roman fate in law. Theederic's Edict can have had little influence after the bloat. J ustinian's recovery of Italy, and the Romano-Burgundian
law was no doubt gradually displaced by Alaric's Breviary after Burgundy had fallen into the hands of the Franks; but the Breviary itself found its way in all directions in France and Germany, penetrating even into England, mainly through the agency of the church. There must, however, have been other repertories of Roman law in circulation (and among others probably either Gaius's Commentaries or Ulpian's Rules), as witness a testament made in Paris in the end of the 7th century, mentioned by Savigny as preserved by Mabillon, in which the testator uses the old formula of the jus civile,- - " ita do, ita lego, ita tester, ita vos Quirites testimonium mihi perhibetote," words that are not to be found either in the Visigothic or the Justinianian collections. We know that in his pragmatic sanction of the year 554, Justinian anew accorded his imperial sanction to the Jura and leges, i.e. the Digest and Code, which he says he had long before transmitted to Italy, at the same time declaring that his Novels were to be of the same authority there as in the East. ^Two years after this came Julian's Latin epitome of the Novels (a private work by a Constantinopolitan professor), not improbably prepared by command of the emperor himself. That Justinian's works soon came
2 Editions by Reitz, 1751, and Ferrini, 1884-97.
' Ed. Heimbach, 6 Vols. with Latin translation (and in 1846 a supplement by Zachariae a Lingenthal), Leipzig, 1833-70. A new supplement forming vol. 7, by Ferrini and Mercati, was published in 1897.
4 For the history of Byzantine law subsequent to Justinian, see Zachariae, Geschichte des Griechisch.-Rom. Rechts (3rd ed., 1892), and Historia juris Graeco-Romani (1839); Mortreuil, Histoire du droil byzantin (3 vols., 1843-46).
to some extent into use in Italy is beyond question; for there is pre-served in Marini's collection the testament of,one Mannanes, executed at Ravenna in the reign of Justinian's immediate successor Justin II., in which the requirements of both Code and Novels are scrupulously observed. Of . other monuments of the same period that prove their currency in Italy several are referred to by Savigny to the second volume of his History of the Roman Law in the Middle Ages, among which may be mentioned the Turin gloss of the Institutes, which Fitting ascribes to about the year 545,1 and two little pieces known as the Dictatum de consiliariis and the Collectio de tutaribus 2 The invasion of the Lombards, the disturbance they caused in Italy for two centuries, and the barrier they formed between it and the rest of Europe militated against the spread of the Justinianian law northwards; but it was taught (from the 6th to the 11th century) without much interruption at law schools in Rome, and also at Ravenna, the seat of the exarchs, to which (but this is doubtful) the school (studium) of Rome, revived by Justinian, is said to have been transferred in the ith century. By the Lombards, as their savagery toned down, the Roman law was so far recognized that they allowed it to be applied to the Romans living within their territory, and it is said even to have been taught in Pavia, which they had established as their capital.. Their overthrow by Charlemagne opened an outlet for it beyond Italy; and there is evidence that. in the 9th century Justinian's works, or some of them, were already circulating in the hands of the clergy in various parts of Europe. Yet there are few remains of any literature of this period indicating much acquaintance with them. The only writings worth mentioning are the so-called Summa Perusina, an abridgment of the first eight books of the Code, ascribed to the 7th century; the Lombardic Quaestiones ac Monita containing observations on the Germanic and Roman laws. with texts drawn from the Institutes, the Digest, the Code and Julian's Epitome, and supposed to have been written early in the 11th century; the so-called Brachylogus,° in large part a sort of abbreviated revision of Justinian's Institutes, but with references also to his other books, which Fitting and others hold to have been written in France (perhaps Orleans), possibly by a pupil of Irnerius, about the very beginning of the 12th century; and the Petri Exceptiones legum Romanorum, a similar systematic exposition of the law in four books, probably written in the Ilth century earlier than Irnerius's Summa. Both the Brachylogus and the Petrus were mainly compiled from pure
Justinianian sources. Apart from these remains a word may here be said about the work of the glossarists.' It was at the very end of the i Ith century
The that at the law school of Bologna, then under the guidance
The of the celebrated Irnerius, the study of Roman law began
ios somewhat suddenly to attract students from all parts of
Isis. Europe. Partly through ignorance and partly through the action of the clergy, the parts of the Justinianian legislation that had hitherto been in ordinary use were the Institutes, the Code and the Novels. The first, from its elementary character, had naturally commended itself ; the Code and the Novels, with their abundant legislation on matters ecclesiastical, were in many respects charters of the church's privileges, and were prized accordingly; but the Digest, as being the work of pagan jurists, had been looked on askance and practically little used. The Code and the Novels, however, with their modicum of wheat concealed in a great quantity of chaff, offered little attraction to laymen of intelligence; and, when under the guidance of Irnerius their attention was first concentrated on the Digest, it must have come to them as a sort of revelation. Dogmatic and exegetic teaching of the Corpus Juris in all its parts was actively begun, and a new school arose called the glossarists (glossatores), of whom Irnerius has always been rightly regarded as the founder. This great man, who is said to have been trained both in logic and rhetoric and to have afterwards studied and taught law at Rome before coming to Bologna, was more than a glossator. He was also the first of the medievalists to treat the law in a scientific way. In his Summa Codicis (a work attributed to him by Fitting on evidence which seems almost conclusive) he produced for his contemporaries .and successors an independently planned and so far systematic manual of the subject-matter of the Code, omitting the last three books.° The subject was treated in full relation to•the other parts of the Corpus Juris, but follows in general the titles of the Code. The glossators got their name from the glossae, i.e. marginal and interlinear annotations (both grammatical and doctrinal) with which they furnished the texts of the
i Fitting, Ober die sogenannte Turiner Insfitutionen-glosse (Halle, 1870); cf. Conrat, Gesch. d. Quellen u. Litt. d. rent. R. im friiheren Mittelalier, vol. i. pp. 18o seq., Leipzig, 1891.
s Conrat ut sup. pp. 137-140.
Brachylogus totius juris civilis is a fuller title given to it. It has also been called Corpus legum. It first got the name Brachylogus in the 16th century.
Savigny, Geschichte d. r. R. vols. 3-5.
° See Summa Codicis of Irnerius by Fitting (Berlin 1894). Two other works attributed to Irnerius, called respectively Quaestiones de Subiilitatibus Juris and a treatise De Aequitate, have been edited by the same author. See also Fitting, Z. d. Sat. Stilt. xvi. pp. I seq.
Corpus Juris which were in their hands. They also wrote summae, casus, brocarda, •• &c., for use both in. the courts and the schools, and occasionally special treatises. They confined their work entirely to the Corpus Juris, being almost wholly ignorant of the history of the law. Beginning with Irnerius, the school lasted for about a century and a half, and ended with Franciscus Accursius, who died in 126o after having made a systematic but summarized collection of the glosses of his predecessors, which was afterwards known as the Glossa Ordinaria or The Great Gloss." Among the more famous representatives of the school (other than Irnerius) were, in the 12th century, Bulgarus, Martinus, Jacobus and Hugo, known as the quattuor dactoees, and Accursius himself. To these may be added Placentinus and Vacarius of the 12th and Azo and Odofredus of the 13th century. The Digest, as used by the glossarists, was divided into three parts, known as Digestum Vetus (books 1-24, tit. 2,), Infortiatum (books 24, tit. 3–38), and Digestum Novum (books 39 to the end). The manuscripts of these, as used by the glossarists, are called the Vulgate (lectio Vulgate), to distinguish them from the Florentine Manuscript (lectio Pisana), on which, indeed (or on the same original source as it), they were probably all primarily based, but from which, as far at least as book 33, they varied in numerous readings. The historical explanation of the cause of this just-mentioned threefold division is given by Mommsen in. the preface to his larger edition of the Digest, to which it will be sufficient to refer :° The whole Corpus Juris was by the glossarists distributed into five volumes, viz. the three just named; a fourth, containing the first nine books of, the Code; and the fifth, called vole-men parvum legum, containing the Institutes; 134 of the Novels in Latin (known as the Authenticum7) ; and the last three books of the Code.
The success of the Accursian gloss was rather detrimental to scientific development of the law. It became a sort of code in itself which both in the schools and the courts tended to supersede the texts of Justinian. The intelligent study of the Sources was neglected while lawyers devoted themselves to subtle distinctions and useless divisions of subject-matter. It led to the application during the 14th and 15th centuries of the methods of scholasticism to the Roman law. The authors of this scholastic jurisprudence, which prevailed during the greater part of these centuries,, have been called post-glossators and scribentes or commentators. Their most. noted representative was Bartolue (1314–1357), after whom they were often called Bartolists. This school, however (mainly Italian), did much towards developing a definite system of common law in Italy based on the Roman, and thereby facilitated the reception of Roman law in Germany and other countries.°
In the 16th century a new start or, so to say, second renaissance was given to the Roman law. The study of classical antiquities, so active on the side of literature, extended to jurisprudence also. The juridical writings which had been handed down from' the Romans ceased to be regarded purely as positive law, binding aceording to the letter, but as a part of ancient tradition whose spirit as well as form must be examined by the light of the past. Among the pioneers in this new method, to, whom the name of Humanists has been given, must be specially mentioned Alciatus (1492-1540), Cujacius (1522–1590) and Donellus (1527-1991). Medievalism has passed away, and with these jurists began what has been called the modern Roman law, to describe which, however, is entirely beyond the province of this article. (H. Go.)